After Chicone: Blasting the Bedrock of the Criminal Law
In Chicone v. State, 684 So. 2d 736 (Fla. 1996), the Florida Supreme Court recited a bedrock principle of criminal law. Mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.1 In other words, mens rea, or guilty mind , is a defining characteristic of criminal conduct. Criminal offenses that require no mens rea are generally disfavored. Some indication of legislative intent, express or implied, is required to dispense with mens rea as an element of a crime.2 This article notes that criminal offenses lacking mens rea are not unconstitutional per se, but concludes that such offenses must be regarded as strict liability or public welfare offenses and may not be punished as felonies.
Jerry Jay Chicone III, was convicted of, inter alia, the third degree felony of possession of cocaine. He argued, inter alia, that the trial court erred in refusing to instruct the jury that the state must prove the mens rea element of knowledge of the illicit nature of the substance. The Florida Supreme Court agreed with Chicone, holding that the trial court erred in failing to instruct the jury that the state must prove that the defendant had knowledge of the illicit nature of the substance, thus, satisfying the mens rea requirement of the criminal law.
The holding of Chicone is multi-faceted: 1) the plain language of the possession of cocaine statute imposes no mens rea requirement;3 2 ) absent mens rea, possession of cocaine is a strict liability offense encompassing innocent conduct;4 3 ) the imposition of felony punishment for a strict liability offense violates due process;5 4 ) it is presumed that the legislature did not intend to enact an unconstitutional statute;6 5 ) it is necessary, therefore, to save the constitutionality of the possession of cocaine statute by inferring, as a matter of judicial construction, the mens rea element of knowledge of the illicit nature of the substance.7
Some may argue that Chicone did not hold the possession of cocaine statute unconstitutional. Rather, the Florida Supreme Court simply construed the statute in a manner so as to avoid the constitutional question. This view ignores the first canon of statutory interpretation which states that the plain language of a statute shall be given effect if the intent of the legislature is clear and unambiguous.8 In Chicone, the Supreme Court acknowledged that the plain language of the statute imposed no mens rea requirement. That being the case, no judicial construction was required or even authorized.9 It was only the finding of a constitutional defect which authorized the Supreme Court to engage in the judicial construction necessary to support its ultimate holding — that knowledge of the illicit nature of the substance is an element of the possession offense.
After Chicone, the Florida Legislature came to the view, at least with respect to controlled substances, that the mens rea requirement, the bedrock principle of Anglo-American criminal law, was no longer a sound public policy. The legislature dispensed with the mens rea requirement by enacting F.S. §893.101. Section 893.101(1) states that the holding of Chicone — that the state must prove that the defendant knew of the illicit nature of the substance — was contrary to legislative intent. F.S. §893.101(2) provides: The [l]egislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.
this enactment, the legislature converted the offense of possession of cocaine, and all other Ch. 893 offenses, to strict liability crimes, as clearly stated in Chicone.10
The enactment of F.S. §893.101, however, did not overrule Chicone. The legislature could not overrule the constitutional aspect of Chicone because the separation of powers doctrine confers upon the judiciary the sole authority to say whether a statute is constitutional.11 On the other hand, the legislature possesses the sole authority to determine the elements of a criminal offense.12 It is correct to state, therefore, that the enactment of F.S. §893.101 superseded Chicone, but only in part. Chicone’s ultimate holding, that the mens rea element will be inferred as a matter of judicial construction, may not stand.
State v. Rubio, 967 So. 2d 768 (Fla. 2007), is consistent with the constitutional rule articulated in Chicone. In State v. Rubio, the Florida Supreme Court held that a portion of the Florida Medicaid provider fraud statute was unconstitutional. F.S. §409.920(2)(a) (2002) made it a third degree felony to “knowingly” submit a false Medicaid claim. The term “knowingly,” however, was defined in §409.920(1)(d) to mean that the act is “done by a person who is aware or should be aware of the nature of his or her conduct and that his or her conduct is substantially certain to cause the intended result.”
The Florida Supreme Court held that the portion of the statute providing felony liability for one who “should be aware” of the falsity of the Medicaid claim was unconstitutional. The “should be aware” standard did not constitute mens rea and permitted conviction on the basis of negligent conduct. Since the case was still in the informational stage of the proceedings, the Supreme Court held that the constitutionality of the statute could be saved by severing the “should be aware” language. Severance of that language assured that a conviction could not be obtained without proof of mens rea. In this manner, State v. Rubio parallels the Chicone rule that a felony conviction, without proof of mens rea, violates due process.
The relationship between Chicone and F.S. §893.101 invites the following syllogism. The imposition of felony punishment for a strict liability offense is unconstitutional; possession of cocaine is a strict liability offense; the possession of cocaine statute is, therefore, unconstitutional. While the syllogism seems logical, the particulars of the law demonstrate that it is not entirely correct in the legal sense. In United States v. Balint, 258 U.S. 250 (1922), the Supreme Court held that a charging document was not legally deficient for failing to allege mens rea in the charge of a criminal offense. Specifically, the Supreme Court held that a tax revenue statute may impose criminal penalties as a means of narcotics regulation without requiring proof that the defendant knew that the narcotics he sold were of the type proscribed by the statute, i.e. , strict liability. The imposition of criminal penalties for violations of public welfare regulations, also known as strict liability offenses, does not violate due process.13 The rationale supporting criminal punishment for public welfare offenses states that such punishment is necessary, or at least helpful, in protecting the public from the negligence of those who deal in dangerous items.14
The Supreme Court in Balint, however, was not presented with a question regarding the constitutionality of felony punishment upon conviction for a strict liability offense.
In Staples v. United States, 511 U.S. 600 (1994), the Supreme Court strongly implied that the imposition of felony punishment for a strict liability offense would be unconstitutional.
Close adherence to the early cases. . . might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense. In this view, absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare rationale to interpret any statute defining a felony offense as dispensing with mens rea. 15
In Chicone, the Florida Supreme Court likewise stated that the imposition of felony punishment was incongruous with crimes that require no mens rea.16
enacting F.S. §893.101, the Florida Legislature did what no legislature, state or federal, had done before — expressly repudiate the efforts of the judiciary to save the constitutionality of a criminal statute by implying a mens rea element. Yet, it was within the sole power of the legislature to prescribe the elements of the criminal offense of possession of cocaine. In State v. Giorgetti, 868 So. 2d 512, 516 (Fla. 2004), the Supreme Court acknowledged that an express provision dispensing with mens rea will always control the determination of the elements of the offense.17 In Giorgetti, the Florida Supreme Court also recognized, however, that scienter is often necessary to comport with due process constraints.18 The elimination of scienter from a criminal statute must be done within constitutional constraints.19
The legislative insistence that a conviction for possession of cocaine does not require proof of mens rea seems to compel the conclusion that the statute is unconstitutional. Chicone held, in part, that the statute was unconstitutional for lack of mens rea. The enactment of F.S. §893.101 simply confirmed the judicial determination that the statute, by its plain language, did not require mens rea. The legislature cannot overrule the constitutional ruling of the judiciary. Ergo, the statute is unconstitutional. But that does not end the inquiry.
After finding the statute unconstitutional the Supreme Court, in Chicone, saved the statute by inferring a mens rea requirement. Since the Supreme Court can no longer save the statute by inferring amens rea element, the question next presented is whether the Supreme Court can save the statute by alternative means. This question must be answered affirmatively. The constitutional right of substantive due process protects a number of interests including the availability or harshness of punishment or other remedies imposed against citizens by government actors.20 The imposition of felony punishment is incompatible with the theory supporting the public welfare or strict liability offense.The tension between the punishment and the theory may be resolved, however, by mitigating the punishment available for violation of the strict liability offense. Relevant precedent is found in the federal decisions.
In United States v. Wulff, 758 F.2d 1121, 1124 (6th Cir. 1985), the circuit court concluded that the district court properly dismissed an indictment charging a felony violation of the Migratory Bird Treaty Act. The court concluded that a felony prosecution was not permissible because the statute did not require mens rea, and the potential penalty of a felony conviction and two-year imprisonment would violate due process. The circuit court, however, cited United States v. St. Pierre, 578 F. Supp. 1424, 1429 (D.S.D. 1983), for the proposition that a conviction may be sentenced pursuant to the misdemeanor provision of the act. These federal authorities are consistent with Chicone and State v. Rubio.
The federal and state authorities establish the following rule of law. It is unconstitutional to impose felony punishment for an offense not requiring proof of mens rea. One must conclude, therefore, that a strict liability offense such as possession of cocaine may be punished only as a misdemeanor.
1 Chicone v. State, 684 So. 2d 736, 743, quoting Dennis v. United States, 341 U.S. 494, 500 (1951).
2 Id. at 743, citing Staples v. United States, 511 U.S. 600, 605-06 (1994).
3 Id. at 742 (text accompanying note 10), 744.
4 Id. at 739, quoting Frank v. State, 199 So. 2d 117 (Fla. 1st D.C.A. 1967), and Rutskin v. State, 260 So. 2d 525 (Fla. 1st D.C.A. 1972). Id. at 743, quoting Liparota v. United States, 471 U.S. 419, 426 (1985). Id. at 743, n.11.
5 Id. at 742-743, citing United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Staples, 511 U.S. 600, 617-618 ( punishing a violation as a felony is simply incompatible with the theory of the public welfare offense).
6 Id. at 744.
7 Id. at 741-744.
8 McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla. 1998), citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).
9 Holly v. Auld, 450 So. 2d at 219.
10 But see Wright v. State, 920 So. 2d 21 (Fla. 4th D.C.A. 2005) (stating that Fla. Stat. §893.101 makes possession of cocaine a general intent crime); Harris v. State, 932 So. 2d 551 (Fla. 1st D.C.A. 2006)(same). Wright and Harris overlook the fact that general intent is a form of mens rea. See Smith v. State, 968 So. 2d 1054 (Fla. 5th D.C.A. 2007).
11 Marbury v. Madison, 5 U.S. 137 (1803); Bush v. Schiavo, 885 So. 2d 321, 329-30; Fla. Stat. §20.02(1) (2002).
12 State v. Giorgetti, 868 So. 2d 512, 516 (Fla. 2004).
13 United States v. Balint, 258 U.S. 250 (1922).
14 Francis Bowes Sayre, Public Welfare Offenses, 33 Columb. L. Rev. 55 (1933).
15 Id. at 618.
16 Chicone, 684 So. 2d at 743.
17 State v. Giorgetti, 868 So. 2d 512, 516 (Fla. 2004).
18 Giorgetti, 868 So. 2d at 518.
19 Id. at 520, citing Chicone. One district court has applied this rule even to a misdemeanor offense. See Siplin v. State, 33 Fla. L. Weekly D82a, n.8 (Fla. 5th D.C.A. Dec. 28, 2007) (criminalizing purely innocent conduct violates substantive due process).
20 Westerheide v. State, 831 So. 2d 93, 104 (Fla. 2002), citing Dept. of Law Enforcement v. Real Property, 588 So. 2d 957, 960 (Fla. 1991).
Richard M. Summa graduated from Florida State University College of Law with honors in 1991. He practices in the appellate division of the Office of the Public Defender, Second Circuit.
This column is submitted on behalf of the Criminal Law Section, Ann E. Finnell, chair, and Georgina Jimenez-Orosa, editor.